Probate: Understand the Process for Probating a Will in Texas
Probate generally encompasses the legal process for the administration of a deceased person’s estate. In practical terms, probate involves a judge naming an executor to administer the deceased person’s estate. This includes collecting the deceased person’s assets, liquidating his/her liabilities, paying any taxes due (including filing the final income tax return), and distributing the deceased person’s remaining property to the beneficiaries.
In Texas, probate actions usually are done with close supervision of the probate court if there is a “dependent administration” or with relatively little supervision of the probate court if there is an “independent administration.” The difference is that an independent administration is carried out in nearly all instances by a named executor and, generally speaking, there is a clearly written will to govern the process, eliminating the need for probate court intervention. Dependent administrations require a probate court’s intervention.
While probate can be complex, initiating the probate process is usually simple with an experienced Woodlands Probate Attorney by your side. Your Probate Attorney will prepare the initial court pleadings and schedule a court date to begin the process.
Considerations Before Starting Probate
Unfortunately, the responsibilities of an administrator or executor can be highly complex and sometimes time consuming. Because of this, it is advisable to learn more about the probate process before opening an estate.
For example, you should understand the five distinct types of probate processes:
(1) Independent Administration. Generally speaking, an “independent administration” is one where the administration of the decedent’s estate is conducted, for the most part, without court supervision or intervention. The executor is able to perform most of their duties without the requirement of obtaining court approval before they perform all, or most, of their duties.
(2) Dependent Administration. A “dependent administration” generally is where the executor or administrator of the decedent’s estate is required to gain court approval for all, or most, of the tasks they must perform in order to administer the estate. This type of probate usually requires more time and filing fees.
(3) Muniment of Title. “Muniment of title” is a probate proceeding that can be used where the decedent has left a will and there are no debts that are unsecured by real estate. This is the shortest type of probate, but if there are any investments in the estate or if there is an out-of-state company or company agent that need to get involved in the administration of the estate, then muniment of title is not the right probate process for you. Muniment of title probate process generally is where the only debt is the mortgage on the homestead.
(4) Small Estate Affidavit. A “small estate affidavit” is used where (1) there is no will and there are no pending petitions for a dependent administration; (2) the total value of the estate’s assets do not exceed $50,000. This amount does not include the homestead or any exempt property; (3) less than 30-days have elapsed since the decedent’s death; and (4) there are two disinterested witnesses to file sworn affidavits concerning heirship. If all of these are not met, then you cannot use a small estate affidavit form of probate.
(5) Filing a Determination of Heirship. Filing a “determination of heirship” is also used when there is no will to offer to probate. If a person dies without a will (“intestate”), the court must then determine who all the heirs are and what, if any, share of the estate each heir will receive. All facts concerning the identity of all potential heirs must be produced at a hearing before the probate judge. In addition, an attorney ad litem will be appointed by the court to represent the interests of any unknown heirs, known heirs that can’t be located and heirs that are legally disabled.
Over the years, the probate process has become more complex in Texas, and it is generally a good idea to contact an attorney who practices probate law. If you find yourself in need of an attorney to assist with probate after a loved one has passed away, the Shea Law Firm offers respectful, quality legal care at a reasonable cost. For assistance on Probate matters, contact the firm today at (832) 592-7913.
FREQUENTLY ASKED QUESTIONS REGARDING PROBATE
NOTE: Probate Attorney Richard L. Shea provides the following answers to some common probate questions. The answers are general, and are not legal advice for any person or situation. Please contact this law firm or another firm practicing probate law to receive legal advice pertaining to your unique circumstances. The answers below are specific to Texas.
Is probate common?
Yes, when someone dies, some level of probate is generally performed.
Is every estate probated, or just dependent ones?
Yes, in a sense, every estate is probated, even independent administrations. However, with independent administrations, the will is filed with the appropriate court to open the estate; the court appoints the executor; and then there is not much court involvement until the estate is closed and all of the property is distributed. Although it is not mandatory that all every will be probated, it is a good idea to have the will reviewed by a probate attorney to see if there are any legal issues involved that would require the will be be probated.
How do you avoid probate?
One way to avoid probate all together is to place ALL your property into a “living trust.” However, in order to avoid probate by using a Living Trust all of your financial assets and property must be properly positioned. Any asset that is not properly positioned is at risk for going through probate.
As a family member of someone who recently died, are there things to consider before opening a case for probate?
The best approach is probably to contact a probate attorney, either at the Shea Law Firm or at another law firm, shortly after the death of a loved one. There are some things that need to be considered, including:
- If there is a will, it usually needs to be followed.
- If there is a will, it needs to be submitted to probate within four years of death.
- If the decedent’s estate is large, there can be many complexities.
- If the decedent has outstanding debt and taxes, they need to be addressed.
- If anyone wants to contest the will, they have two years from the date the will was admitted to probate, to file their challenge.
What if I don’t like the executor, can they be removed?
An executor can only be removed under certain circumstances. An executor may be removed for “gross misconduct or mismanagement in the performance of his duties,” according to the Texas Probate Code. There are other grounds listed in the code that can also be used to remove an excutor. For example, if the executor fails to timely file the required inventory of the property of the estate.
Removing an executor can be a difficult and costly process. It is often best to recognize that the death of a loved one is a very emotional event, and try to work with the executor to handle matters in a manner that all of the surviving family can support.
Of course, if there is misconduct or suspected mismanagement by the executor, removal might be an option.
Who Can Open an Estate to Probate?
If there is a will, then it is usually opened by the named executor. If there is no will, then it is generally opened by the surviving spouse, adult child or other close family member.
Are named executors/administrators compensated for their efforts?
They typically are appointed without compensation, or as a will instructs.
Can probate courts overrule a will, or do they just interpret them?
The courts generally try to follow a will. If things are unclear, the court posits the question “What was the intent of the testator?” And, of course, courts won’t enforce provisions of a will that are unlawful.
Do taxes stop after one is dead, or does the estate continue to accrue tax until it is closed?
Tax wise, a final income tax return needs to be filed for the decedent’s last years income, and as far as estate taxes go, you essentially take a “snap shot” of the assets at the time of death and those values are used to figure out what, if any, estate taxes will be owed.
Who generally hires a probate attorney, and why?
Usually it is the executor that hires a probate attorney, to help them handle the administration of the estate and the necessary court filings. Sometimes, other specialists, such as CPAs, also will hire probate attorneys to assist with legal aspects of a probate matter. Attorney’s fees, as well as fees from other experts involved, generally are paid by the decedent’s estate. However, if a will is contested, then each party hires an attorney to represent their interests in the estate and probating of the will.